Trinity Term 2010


Week 1
Wed, 28 Apr

Anti-semitism and condemnation
Guy Sela
DPhil student in Law, Keble College, Oxford

In this paper I consider when certain condemnatory speech-acts should be considered anti-Semitic. I argue that the range of (speech-)acts which should be considered anti-Semitic and, hence, wrongful, is much broader than is usually considered and encompasses kinds of denunciations which are not, in and of themselves, disproportionate to the condemnation that Jews deserve. I start by asserting that anti-Semitism is a kind of wrong; more specifically it is the wrong of adversely discriminating against Jews. I then consider certain kinds of acts which are cases of discrimination against Jews and argue that whether or not an act is anti-Semitic does not depend (wholly) on the agent’s intentions. In the second part I explain briefly the notion of speech-act and its significance. I argue that condemnation is a form of speech-act and that it constitutes an adverse treatment of the condemned agent. I then move on to consider when the speech-act of condemnation constitutes an adverse discrimination against Jews. I argue that an act of condemnation can be anti-Semitic even when the condemnation is not disproportionate to the acts which constitute the grounds of condemnation, if these acts are not followed by (proportionate) condemnation in other relevant cases. Finally, I consider some special cases of condemnatory speech-acts. I consider unintended condemnation, condemnation based on factual mistake and collective condemnation (as in a demonstration) and try to establish when each of these should be considered anti-Semitic. I conclude that the range of condemnatory speech-acts that should be considered anti-Semitic is much broader than what may seem at first glance.


Week 2
Wed, 5 May

Constitutional Human Rights and the Passage of Time [download paper]
Yishai Mishor
DPhil student in Law, Lincoln College, Oxford

The passage of time plays a significant and diverse role in many constitutional human rights cases. It bears various legal meanings. The aim of this paper is to identify the possible functions of the passage of time applied by the court, and their different legal outcomes. The result is a toolbox for analyzing judicial temporal approaches. The first step is to offer a way of sorting the vast literature on time and law into four categories of different concepts of time. This enables me to better define the subject and to locate it with respect to what has already been written about time and law. I identify the passage of time (which I call endogenous time as quantity), as one category that has not been thoroughly discussed in legal scholarship. I then turn to develop this subject in the context of constitutional human rights. I classify three different functions of the passage of time, namely, Magnitude, Nature, and Duty. These functions are illustrated and analyzed in various human rights cases. Finally, I introduce the possible employment of the passage of time as an index of probability.


Week 3
Wed, 12 May

Translation and justice in Paul Ricoeur [download paper]
Angelo Bottone
Associate lecturer, School of Art of the Dublin Business School, Ireland

In my paper, I intend to present the reflection on translation and justice that Paul Ricoeur has developed over the last ten years of his life in some of his lectures and articles. Considering translation as a paradigm of the attitude towards the Other, Paul Ricoeur supports the idea that ethical purposes relating to what he calls ‘linguistic hospitality’ are the model for any kind of hospitality. I will show the role of translation and justice in his philosophical system, with a particular focus on his analysis of the act of judging and of his hermeneutical concept of ‘distanciation’. Moreover, I will present the possible implications of his thoughts for legal translation.


Week 4
Mon, 17 May

Neutrality Isn't Neutral: On the Value-Neutrality of the Rule of Law
Tara Smith
Professor of Philosophy, Department of Philosophy, University of Texas at Austin

The Rule of Law is widely regarded a vital ideal for legitimate government, yet the exact value provided by this ideal is contested and often murky. Some maintain that the Rule of Law is morally neutral and, indeed, that this neutrality is the very feature that renders the ideal universally commendable, a proper desideratum for nations devoted to starkly divergent ideologies. Against that view, this paper argues that the Rule of Law is a valid ideal only because it is a moral good that serves a morally worthy purpose. The first part of the argument presents five distinct rationales in support of the value-neutral position, and offers a critique of each. The second part lays out the positive case for the moral fiber of the Rule of Law, contending that both the purpose of law and the means by which law is enforced implicate the ideal’s moral character. The analysis in both parts turns heavily on the nature of objectivity and the principle that form follows function. Along the way, it exposes ambiguities in the ways that the Rule of Law’s value, neutrality, and “idealness” are commonly treated. It also reveals that neutrality can't be neutral, in practice, and that any attempt to exclude the influence of all moral values from the formal conditions that constitute the Rule of Law inescapably incorporates some such values, whether deliberately or not. At stake is our ability to enjoy the benefits that the Rule of Law can and should provide. For without a clear understanding of the value of this ideal, we cannot accurately identify its necessary conditions or have a sound basis for judging whether a given government or government action is or is not upholding it. Correspondingly, we risk unwittingly surrendering ourselves to the Rule of Men.


Week 5
Mon, 24 May
Gulbenkian Lecture Theatre, Law Faculty, St Cross Building

Special Event: Discussion Panel
To whom Is Criminal Responsibility Owed and Why?
Antony Duff, Victor Tadros, and John Gardner

In 'Answering for Crime' (Hart Publishing, 2009) Prof Antony Duff argues that theorists of criminal law should take more seriously the relational dimensions of responsibility. We must ask not just what people are responsible for, but to whom they are responsible; in the context of criminal law, we must ask 'Who is [or should be] criminally responsible for what, to whom?' To be responsible is to be answerable, but to be answerable requires the existence of a party with standing to demand an answer. Thus, it seems, criminal theorists must concern themselves with the question: who has that standing with respect to criminal responsibility and on what terms, or subject to what conditions or limitations, do they have it?


Week 5
Wed, 26 May

The Intelligibility of Extra-Legal State Action:
Some Lessons for Debates on Emergencies and Legality [download paper]
François Tanguay-Renaud
Assistant Professor, Osgoode Hall Law School, Canada

Some legal theorists deny that states can conceivably act extra-legally, in the sense of acting contrary to domestic law. This position finds its most robust articulation in the writings of Hans Kelsen, and has more recently been taken up by David Dyzenhaus in the context of his work on emergencies and legality. This paper seeks to demystify their arguments and, ultimately, contend that we can intelligibly speak of the state as a legal wrongdoer or a legally unauthorized actor."


Week 6
Wed, 2 Jun

Luís Duarte d'Almeida
DPhil student in Law, University College, Oxford

In his 1949 discussion of ‘defeasible’ judicial decisions, Hart claimed that (1) the circumstances on which such decisions depend cannot be specified by a set of necessary and sufficient conditions: some conditions are necessary, but ‘not always’ sufficient. What we need instead, he suggested, is the word ‘unless’, followed by the list of admissible exceptions, to accompany the statement of those necessary conditions. Some have agreed, arguing that in order properly to represent exceptions a non-monotonic account of legal reasoning is needed. And some have disagreed, insisting that the presence of each available exception is equivalent to the non-verification of some necessary, negative element. I maintain in turn that both sides are wrong. Defences, I suggest, are not reducible to (positive or negative) necessary conditions. But it doesn’t follow that (1).


Week 7
Wed, 9 Jun

Bringing the Agent Back Home:
How MacCormick Smithified Kant [download paper]
Maksymilian Del Mar
Swiss National Science Foundation Researcher, University of Lausanne, Switzerland

This paper offers a reading of one of the central features of Neil MacCormick’s last book, Practical Reason in Law and Morality (2009), namely, what he called ‘the Smithian Categorical Imperative’ (SCI). The SCI is presented by MacCormick as a synthesis of the best of Immanuel Kant and Adam Smith’s contributions to moral philosophy. The paper proceeds in three parts: the first two are dedicated to articulating, but also evaluating, MacCormick’s understanding of Kant and Smith. The focus in these two parts is on two sets of concepts: autonomy and universality in the case of Kant, and imagination and sympathy in the case of Smith. The third part then discusses the formulation and two applications of the SCI, the first of those relating to the practice of lying and breaking promises, and the second to the conjoined twins’ case. The paper is written in a sympathetically critical spirit. It is argued that MacCormick’s rapprochement between Kant and Smith in the form of the SCI is a genuinely important and original contribution to moral philosophy. Nevertheless, the paper also considers whether, by modifying MacCormick’s interpretation of Kant and Smith (and especially the latter), we may be able to further extend MacCormick’s characteristically generous capacity to tread a middle path between otherwise antagonistic theoretical traditions. The ultimate hope expressed is for a picture of moral life that combines the full and distinctive importance of autonomy, universality, imagination and sympathy.

Week 8
Wed, 16 Jun

Justice and the Bindingness of Laws
Jacqueline Laing
Senior Lecturer in Law, London Metropolitan University

Hart famously said that “morally iniquitous provisions may be valid as legal rules or principles” and went on to hold that “there are no necessary conceptual connections between the content of law and morality”. The late Neil MacCormick, commenting on the profitability of debates about the connection between law and morality, observed that “I for one regard the issue of mutual opposition as now closed and unfruitful. There are elements from works in both schools which any sound theory of law must embrace...” The futility of the debate is, in part, supported by the truth that both those who propose a connection and those who deny it, appear to agree that, as Raz says, “The law can be valuable, but it can also be the source of much evil”. The debate, it seems, degenerates into a difference of emphasis with the old natural lawyers insisting that unjust laws are not fully laws (i.e. not binding in conscience) and positivists insisting that they are laws, just immoral ones (i.e. not binding in conscience). Despite these caveats from such reputable sources, this paper presumes to reopen this well-thumbed jurisprudential chapter. What lies in wait here, it is suggested, are some time honoured questions such as whether there is any higher law independent of our own social constructs to which posited laws must conform if they are to bind subjects. A distinction between determinative and non-determinative laws is outlined and a pair of examples is constructed to highlight how various laws may fail both technically and substantively. Because many of our moral obligations derive from determinative laws, it is impossible non-circularly to place the question of law's bindingness in the morality basket there to be determined by social consensus and other social facts.


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